[2022] KEHC 27007 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

JUDICIAL REVIEW DIVISION

MISCELLANEOUS APPLICATION NO. E043 OF 2020

REPUBLIC.............................................................................................APPLICANT

VERSUS

CHIEF MAGISTRATE’S COURT...........................................1ST RESPONDENT

THE DIRECTOR OF PUBLIC PROSECUTIONS...............2ND RESPONDENT

TOM ODHIAMBO OWINY AND

AMSA JEROTICH KEITANY...............................................3RD RESPODENTS

EX PARTE APPLICANTS

PATEL RAVJI LALJI

DEVRAJ RAVJI LALJI

JUDGMENT

1. The ex parte Applicants are before this court vide an amended Notice of Motion application dated 30th April,2021 which seeks the following orders;

(i) THAT this court to issue an Order of Certiorari to move into this Honourable Court and quash all the proceedings and directions made in the Nairobi Chief Magistrate’s Court at Milimani Law Courts in Criminal Case Numbers E2928 OF 2020 and E1953 OF 2020.

(ii) THATthis Court do issue an Order of Prohibition restraining the Respondents from proceeding with the mentioning, prosecuting of Criminal Case No. E2928 OF 2020 and E1953 of 2020, at the Chief Magistrates Courts as the issue relating to L.R. No.209/11309 had been dealt with in ELC JR NO.28 of 2017 and ELC No.114 of 2019 and rulings in that respect delivered thereto.

(iii) THAT costs of this application be provided for.

2. The application is supported by the grounds on its face, an amended Statutory statement dated 30th April,2021 and verified by an amended affidavit sworn by Patel Ravji Lalji of even date.

3. The reliefs sought are based on grounds that sometime in 2013, Tom Odhiambo Owiny and Amsa Jerotich (hereinafter 3rd respondents) approached the Ex parte Applicants herein and expressed their interest to sell LR No.209/11309 (I.R 143087) (hereinafter “the property”) at the sum of Kshs. 50,000,000. 00/=.

4. That the Ex parte Applicants aver that they undertook due diligence by visiting the said property and undertaking an official search on 17th April, 2013. A sale agreement was drawn and executed by the respective parties outlining the purchase price and mode of payment and upon payment in full of the purchase price and full compliance the complainants released the completion documents to the Ex parte Applicants and the property was transferred to them vide a transfer instrument registered on 11th October,2013.

5. On 22nd June 2016, the National Land Commission revoked the said transfer which action led the Ex parte Applicant to challenge the said decision in ELC JR No.28 of 2017. The Ex parte Applicants also filed a Notice of Motion application inELC No.114 of 2019against the 3r respondents’ trespass and damage caused to the said property subsequent to conclusion of the said transfer. The 3rd respondents were laying a claim for the sum of Kshs. 20,000,000. 00/=, Kshs. 8,000,000/= for a perimeter wall and Kshs. 6,000,000/= for liquidated damages.

6. It is the Ex parte applicants’ case that they had been enjoying quiet possession until 10th July,2021 and later on 16th September,2020 when they were arrested for allegedly forging signatures of the 3rd respondents. It is argued that the two criminal cases against the Ex parte Applicants are mischievous, vexatious, oppressive, meant to harass, humiliate, embarrass, torture and cause unnecessary mental anguish. The Ex parte Applicants contend that the issue of forgery was not mentioned in any of the rulings delivered in the matters referred to above.

7. It is the Ex parte Applicants’ case that although during plea taking the Magistrate was informed that the said matter was civil in nature and that the issues relating to the property had already been determined by the High Court, the court went ahead to compel the Ex parte Applicants to take plea.

8. In response to the motion before this court the 2nd Respondent herein filed a Replying affidavit sworn by Chief Inspector Eunice Njue on 25th August,2021 and written submissions of even date. The deponent in the said affidavit contends that the Orders sought before this court by the Ex parte Applicants are in contravention of the provisions of Article 157 of the Constitution,2010 which grants the 2nd Respondent the mandate of prosecution.

9. It was urged that the Ex parte Applicants have not raised any triable issues to warrant the issuance of the said orders or to demonstrate that they have a prima faciecase with a probability of success to warrant issuance of conservatory orders. Further, it was argued that they have also not shown that they are likely to suffer irreparable injury or loss if the orders of Prohibition are not granted.

10. The deponent deposed that the Applicants had failed to disclose to this court that the 2nd Respondent had supplied them with the requisite documentary exhibits and witness statements in Criminal cases no. E2928 of 2020 and E1953 of 2020. Further that the matter was now at an advanced stage of pre-trial.

11. It was also deponed that section 193A prevents a situation where criminal proceedings are stayed, prohibited or delayed pending civil proceedings. The Applicants were also accused of failing to prove how the 2nd Respondent has abused the legal process and failed to uphold the interest of the administration of justice or disregard public interest.

12. The deponent cited the case of Michael Monari & Another v. Commissioner of Police & 3 Others, Miscellaneous Application No.68 of 2011 where the court held that it is not the duty of the court to go into the merits and demerits of any intended charge preferred against any party.

13. It was averred that at all material times prior to September 2013, Tom Owiny and Amsa Jerotich Keitany were the registered leasehold proprietors of the said property. The deponent averred that a sale agreement was executed between the parties on 6th October,2013 in which the property was to be sold at the sum Kshs. 50,000,000. 00/=. In addition, a sum of Kshs. 8,000,000. 00/= for erection of a boundary perimeter wall was to be paid by the purchasers. A sum of Kshs. 30,000,000/=was to be paid on or before signing the said agreement and the balance of Kshs. 28,000,000/= to be paid upon completion through RTGS to the vendor’s advocates on their order. Failure to comply with this would lead to liquidated damages of Kshs. 6,000,000. 00.

14. Prior to execution of the agreement, vendors had executed an instrument of transfer of the suit property to enable the Ex parte Applicants to acquire a financial loan as they claimed not to have the full balance of the purchase price. Aggrieved by the Ex parte Applicants’ decision not to charge the said property and instead forge documents in regard to payments allegedly made for the property to Hesbon Omondi, the 3rd Respondents lodged a complaint at the Nairobi Regional Criminal Investigations Office.

15. The deponent averred that investigations commenced and in a letter dated 21st May,2020 the falsified documents used in ELC Nairobi Case No.114 of 2019to falsely represent that the Ex parte Applicants had paid the full purchase price were requested for authentication. It was averred that forgeries were uncovered in;

(i) A letter dated 1st August,2013 purportedly signed by the 3rd Respondents giving authority to have the balance of the purchase price (Kshs. 20,000,000. 00) paid to Hesbon Omondi.

(ii) A copy of a cash acknowledgement receipt dated 15th November,2013 for the account of sale of plot number 209/11309.

(iii) A copy of a cash receipt acknowledgement dated 11th December,2013 for the account of sale of plot number 209/11309.

(iv) Petty cash vouchers.

(v) That perjury was committed by the applicants in ELC case number 114/2019.

16. It was averred that the known signatures of the 3rd Respondents and Hesbon Omondi and the questioned signatures were forwarded to a document examiner and in a report dated 3rd June,2020 it was established that the documents used and uttered in the said ELC case were forgeries. It was also identified that no payment was made to Hesbon Omondi who was neither the registered owner of the property nor a party to or a signatory to the sale agreement.

17. It was the deponent’s case that the 2nd Respondent received copies of letters from the vendors’ advocates demanding from the Ex parte Applicants the amount owed. The said letters did not elicit any responses from the Ex parte Applicants. The deponent averred that only payment of Kshs. 30,000,000. 00 can be authenticated.

18. The deponent averred that the Ruling delivered by Honorable Justice Okong’o was interlocutory and it was without the benefit of the forensic document examiners report.

19. The 3rd Respondents it was averred have always been in physical possession and occupation of the said property. It was argued that ELC JR No.28 of 2017 is no way related to the criminal charges that the Applicants are currently facing before the trial court. The deponent deposed that Justice E.O. Obaga on 27th March,2019 issued orders of certiorari and prohibition against the National Land Commission which had attempted to cancel the title to the suit property claiming that the same was public land.

20. In conclusion, it was argued the Ex parte Applicants have not demonstrated in any way that the 1st Respondent will not accord them a fair and impartial trial. In addition, it was argued that public interest in this matter outweighs the interests of the Ex parte Applicant.

21. The 3rd Respondents in their Replying Affidavit averred that the instant application is premature as section 89(5) of the Criminal Procedure Act affords the trial court an opportunity to interrogate the validity of a charge once presented. It was deposed that the 1st Respondent pursuant to Article 162 and 169 of the Constitution,2010 has the mandate and competence to hear and determine the allegations and questions as to whether the charges against the Ex parte Applicants are tenable. The case of Thuita Mwangi & Another v. The Ethics and Anti-Corruption Commission & 3 Others Petition No.153 & 369 of 2013 was cited.

22. It was the 3rd Respondents’ case that the purported receipts and evidence of payments to Hesbon Omondi came to their knowledge vide the Ex parte Applicants’ further affidavit filed in ELC No.114 of 2019. Subsequently, they lodged a complaint with the Nairobi Regional Criminal Invetigations Office.

23. The application herein was canvassed by way of written submissions. The Ex parte Applicants herein filed submissions dated 25th May,2021 in which learned counsel submitted that the 3rd Respondent want to defraud the Ex parte Applicants even after pocketing Ksh. 50,000,000. 00/=.

24. The 2nd Respondent filed written submissions dated 25th August,2021. In the submissions learned counsel submitted that pursuant to Article 157(6) of the Constitution, the 2nd Respondent performs his duty without consent or direction from any person or authority however, the same must be done while observing the principles under Article 157(11). To support this position counsel cited the case of Petition No. 71 of 2015,Yunus Abdul Rubi & 2 Others [2016] eKLR.

25. It was also submitted that similarly the Inspector General of Police pursuant to Article 245 (1) of the Constitution does not receive any direction from anyone. Further, that section 24 of the National Police Service Act confers the duty to investigate crime and recommend prosecution on the Police.

26. Learned counsel submitted that the rights of a person who has been arrested and charged are protected under Article 49 and 50 of the Constitution and that these protections are enforceable under Article 22 and remedies granted under Article 23. It was submitted that arrest and prosecution is no guarantee that a person may be convicted. To buttress this argument counsel cited the case of Elory Kraneveld v The Attorney General & 2 Others, Nairobi Petition No.153 of 2012.

27. Counsel contended that the Ex parte Applicants have failed to demonstrate how any of their constitutional rights have been violated to warrant judicial review orders sought as was held in the cases of Andrew Okoth Onanda v Inspector General Police & 2 Others [2018] eKLR, Ashish Kampani v. Director of Public Prosecution & 3 Others [2016] eKLR.

28. In regard to the provisions of Section 193 A of the Criminal Procedure Code on concurrent criminal and civil proceedings learned counsel cited the cases of Paul Ng’ang’a v. DPP[2012] eKLRandWilliam S.K. Ruto & Another v. AG, Raphael Waweru Kung’u v Director Public Prosecutions [2018] eKLRand Stephen Ndambuki Muli & 3 Others v Director of Public Prosecutions & Another [2016] eKLR.In conclusion it was submitted that in the absence of any violations of the Constitution or any other law, the 2nd Respondent prays that the court declines to grant the orders sought.

29. The 3rd Respondents in their written submissions dated 19th October,2021 identified 2 issues for determination as follows; whether the decision to arrest and charge the ex parte applicant is lawful, proper and constitutional; and whether the ex parte Applicants motion to quash proceedings before the 1st Respondent should fail.

30. Learned counsel submitted that as was held in the case of Patrick Ngunjiri Muiruri v DPP [2017] eKLRalthough the DPP’s discretion is unfettered it is not unaccountable and similarly the court’s discretion must also be exercised with care. It was also submitted that as was held in the case of Erick Kibiwot & 2 Others v. Director of Public Prosecutions & 2 Others [2014] eKLRthe best forum for testing the validity of a charge is the trial court and not before this Honourable Court.

31. It was submitted that prosecution by the Director of Public Prosecution is clearly guided by the law and where excesses arise, then the decisions arising therefrom must be interfered with and set aside albeit sparingly. The of Court of Appeal of Prof. Njuguna S. Ndungu vs Ethics and Anti-Corruption Commission (EACC) & 3 others Civil Apppeal No.333 of 2018 was cited.

32. Further that sufficient evidence that the 2nd Respondent’s action or decision was made with malice or bad faith is required for this Honourable Court to interfere with the said decision or action. The case of Paul Ng’ang’a Nyaga vs Attorney General & 3 others [2013] eKLR was cited in this regard.

33. The case of George Joshua Okungu and Another vs Chief Magistrate Court Anti-Corruption Court Nairobi and Another, Petition Nos 227 & 230 of 2009 was also cited where the Court observed as follows:

“[77. ] “Whereas we appreciate the fact that the decision whether or not to prosecute the petitioners is an exercise of discretion this Court is empowered to interfere with the exercise of discretion in the following situations: (1) where there is an abuse of discretion; (2) where the decision-maker exercises discretion for an improper purpose; (3) where the decision-maker is in breach of the duty to act fairly; (4) where the decision-maker has failed to exercise statutory discretion reasonably; (5) where the decision-maker acts in a manner to frustrate the purpose of the Act donating the power; (6) where the decision maker fetters the discretion given; (7) where the decision maker fails to exercise discretion; (8) where the decisionmaker is irrational and unreasonable.”

34. Learned counsel submitted that the burden and standard of proof in cases such as the one before this court was elucidated in the case of Kuria & 3 Others vs. Attorney Generalwhere the court held as follows;

“A prerogative order is an order of serious nature and cannot and should not be granted lightly. It should only be granted where there is an abuse of the process of law, which will have the effect of stopping the prosecution already commenced. There should be concrete grounds for supposing that the continued prosecution of a criminal case manifests an abuse of the judicial procedure, much that the public interest would be best served by the staying of the prosecution.”

35. It was submitted that it was time that the ex parte applicant faces his accusers as was held in the case of Daniel Ndungu vs. Director of Public Prosecutions & Another [2013) eKLR;

“In conclusion, the Petitioner ought to face his accusers, prove his innocence or otherwise and submit to the consequences of the Law should he be found culpable.”

Analysis and determination

36. I have had occasion to consider the application, the responses, submissions and the applicable law. Of determination is

(a) Whether the respondents executed their mandate constitutionally and within the law in recommending prosecution of the Exparte Applicants.

(b) Whether the applicant has satisfied the law that the intended criminal proceedings ought to be halted.

(c) Whether the applicant is entitled to orders of judicial review sought.

The applicable legal principles

37. The constitutional underpinning of the vast and unfettered powers over public prosecutions vested on the 2nd respondent is found at Article 157 of the constitution. The Article provides that the 2nd respondent shall not require the consent of any person or authority for the commencement of criminal proceedings and in the exercise of his or her powers or function, shall not be under the direction or control of any person or authority. Under Sub Article 11 he or she is required to have regard for the public interest, the interests of administration of justice and the need to prevent and avoid abuse of the legal process.

38. Article 157 of the constitution is not, however, a carte blanche for the holder of the office to act illegally or unconstitutionally. Where the office acts unconstitutionally, illegally or without due process, the court will be on hand to offer a remedy. The decision to charge is by its very nature an administrative action which is subject to the supervision of this court under Article 47 of the constitution and within the parameters in the Fair Administrative Actions Act. Where appropriate the judicial review jurisdiction of this court can and is often resorted to for suitable remedies..

38. In the case of Diamond Hasham Lalji and another vs Attorney General and 4 others [2018] eKLR the court of appeal extensively considered in detail the applicable law and circumstances under which the court could interfere with the exercise of prosecutorial discretion by the DPP. Among the guiding principles outlined in section 4 of ODPP’S Act No. 2 of 2013 and the National prosecution policy formulated by the DPP pursuant to section 5(1)(c) of the ODPP Act are that; “The decision to prosecute as a concept envisages two basic components namely; that the evidence available is admissible and sufficient and that public interest requires a prosecution to be conducted’’

75. Paragraph 4 (B)(2),of the said policy provides ; “the Evidence test- public prosecutors in applying the evidential test should objectively assess the totality of the evidence both for and against the suspect and satisfy themselves that it establishes a realistic prospect of conviction. In other words, public prosecutors should ask themselves; would an impartial tribunal convict on the basis of the evidence available’’

39. In diamond’s case (supra), the court held in Para. 42 as follows;

“The burden of proof rests with the person alleging unconstitutional power. However, if sufficient evidence is adduced to establish a breach, the evidential burden shifts to the DPP to justify the prosecutorial decision’’

40. In para.45 the court went further to state thus;

“In considering the evidential test, the court should only be satisfied that the evidence collected by the investigative agency upon which the DPP’s decision is made establishes a prima facie case necessitating prosecution. At this stage the courts should not hold a fully fledged inquiry to find if evidence would end in a conviction or acquittal. That is the function of the trial court. However, a proper scrutiny of the facts and circumstances of the case are absolutely imperative’’

41. The jurisprudence show that the standard of review of the discretion of DPP to prosecute or not to prosecute is high and courts will interfere with the exercise sparingly and Lenaola J (as he then was) )summed it up aptly in Patrick Ngunjiri Muiruri v DPP [2017]eKLR

Where he stated;

‘’The law and practice, then, are quite clear; while the discretion of the Dpp is unfettered, it is not unaccountable. While the authority to prosecute is entirely in the hands of the Dpp, it is not absolute. On the other hand, while the power of the court to review the decisions of the DPP are untrammeled, they are not to be exercised whimsically. While the court can review the Dpp’s decisions for rationality and procedural infirmities, it cannot review them on merit’’.

42. Granted in the matter before court, it is common ground that there was a sale of land transaction between the Ex Parte applicants and the 3rd respondents. There are contested issues as between the parties as regards each paties specific performance of the contractual obligations. Certainly our courts at the various levels and relevant jurisdictions have the wherewithal to resolve the dispute.

43. Of concern in these proceedings is the off shoot of a trial of a criminal nature against the Ex parte applicants whereby they are charged in a criminal case before the Magistrates Court. This is after investigations in which as per material before court forgeries were uncovered and perjury against the Ex Parte applicants established. This is not the forum for any further inquiry into the matter and for that reason, it is unnecessary to go into the details of the investigations.

44. Suffice it to note that evidence was collected and presented to the DPP who made a decision to charge the Ex Parte applicants in exercise of the powers under Article 157 of the constitution.

45. I have had due regard to the Ex Parte applicants ‘challenge to the charges levelled against them. I take particular note and interest in the mentioned ELC cases. The Applicants maintain that the alleged forgeries were never raised in those cases. The investigating officer states that in her findings the Ex Parte applicants were culpable for perjury before the ELC court. The DPP on review of the matter agreed with the findings and recommended the charges. No doubt there exists serious issues for interrogation. The court with the latitude to interrogate the facts and make findings one way or the other is the trial court.

46. This court would fall into great error if it was to usurp the duty of the trial court by evaluating the sufficiency or otherwise of the evidence and to make a finding whether the same can sustain a conviction. The decision in Erick Kibiwott & 2 Others v DPP &2 Others [2014]Eklr illuminates this . The court stated;

‘’Judicial review applications do not deal with the merits of the case but only with the process. In other words judicial review only determines whether the decision makers had the jurisdiction, whether the persons affected by the decision were heard before it was made and whether in making the decision the decision maker took into account relevant matters or did take into account irrelevant matters. It follows that where an applicant brings judicial review proceedings with a view to determining contested matters of facts and in effect urges the Court to determine the merits of two or more different versions presented by the parties the Court would not have jurisdiction in a judicial review proceeding to determine such a matter and will leave the parties to resort to the normal forums where such matters ought to be resolved. Therefore judicial review proceedings are not the proper forum in which the innocence or otherwise of the applicant is to be determined and a party ought not to institute judicial review proceedings with a view to having the Court determine his innocence or otherwise. To do so in my view amounts to abuse of the judicial process. The Court in judicial review proceedings is mainly concerned with the question of fairness to the applicant in the institution and continuation of the criminal proceedings and once the Court is satisfied that the same are bona fides and that the same are being conducted in a fair manner, the High Court ought not to usurp the jurisdiction of the trial Court and trespass onto the arena of trial by determining the sufficiency or otherwise of the evidence to be presented against the applicant. Where, however, it is clear that there is no evidence at all or that the prosecution’s evidence even if were to be correct would not disclose any offence known to law, to allow the criminal proceedings to continue would amount to the Court abetting abuse of the Court process by the prosecution.’’

47. The burden of proof lay upon the Ex Parte applicants to demonstrate that the the respondents, and particulary the 2nd respondent violated their constitutional rights , acted with malice or ulterior motives, acted without due regard to public interest , acted against the interest of justice or abetted abuse of the court process. The existence of the civil cases mentioned does not by dint of section 193A vitiate the criminal charges. Under section 193A of the Criminal Procedure Code, the concurrent existence of the criminal proceedings and civil proceedings even if any matter in issue in any criminal proceedings is also directly or substantially in issue in any pending civil proceedings would not, ipso facto, constitute an abuse of the process of the court. From the foregoing, I am minded to find that the 2nd Respondent should be permitted to carry out his task without intervention from the courts, as per his constitutional mandate.

48. The Ex Parte applicants shall have their day in court to meet their accusers. Their rights to a fair trial are properly secured under Articles 49 and 50 of the constitution. They will be able to ventilate their case including the right to examine witnesses.

49. The upshot is that the Ex parte Applicants have fallen short of the threshold required for the exercise of this court’s powers under judicial review to quash and prohibit the prosecution herein. The amended Notice of motion fails and is dismissed. In the circumstances of this case, I direct that each party is to bear its own costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 10TH DAY OF MARCH 2022

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A. K. NDUNG'U

JUDGE